LOCAL 53 OF INT. ASS'N OF HEAT & FROST I. & A. WKRS. v. Vogler

• Decision Date: 15 January 1969
• Docket Number: No. 24865.,24865.
• Citation: 407 F.2d 1047
• Parties: LOCAL 53 OF the INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, Appellant, v. Paul VOGLER, Jr., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

407 F.2d 1047 (1969)

LOCAL 53 OF the INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, Appellant, v. Paul VOGLER, Jr., et al., Appellees.

No. 24865.

United States Court of Appeals Fifth Circuit.

January 15, 1969.

COPYRIGHT MATERIAL OMITTED

Thomas J. Meunier, C. Paul Barker, Dodd, Hirsch, Barker & Meunier, Jerry L. Gardner, Jr., New Orleans, La., for appellant.

David L. Norman, Dept. of Justice, Washington, D. C., Barbara A. Morris, Robert L. Carter, New York City, Michael J. Molony, Jr., Revius O. Ortique, Jr., Hugh W. Fleischer, Atty., Dept. of Justice, New Orleans, La., Stephen J. Pollak, Asst. Atty. Gen., Nathan Lewin, Frank M. Dunbaugh, Attys., Dept. of Justice, Washington, D. C., for appellees.

Before DYER and SIMPSON, Circuit Judges, and CABOT, District Judge.

DYER, Circuit Judge:

Local 53 appeals from a temporary injunction entered against it, which prohibits the union's admitted discrimination in acts and policies of membership, referrals for employment, and training, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. We affirm.

The facts are relatively undisputed. Local 53 is a labor organization which is the exclusive representative in negotiating terms and conditions of employment for those engaged in the asbestos and insulation trade in southeastern Louisiana, including the metropolitan areas of New Orleans and Baton Rouge and some counties of Mississippi. Local 53 effectively controls employment and training opportunities in the asbestos and insulation trade in the area. It is by contract the exclusive bargaining agent for all asbestos workers employed by every major firm in that territory, and, in practice although not by contract, it operates a referral system at the union office through which it either furnishes or approves each journeyman and helper hired by asbestos contractors.¹

In order to be admitted into Local 53 at the top rating of journeyman mechanic, the union requires that the applicant be a physically fit citizen under thirty years of age, obtain written recommendations from three members, and obtain the approval of a majority of the members voting by secret ballot at a union meeting. Additionally, the applicant must have had four years of experience as an "improver" or "helper" member of the union, but improver membership in the union is restricted to sons or close relatives living in the households of members.² Aside from the citizenship, age and physical fitness requirements, the union has imposed no qualifications or standards related to the trade upon persons seeking membership or referral for work.

Despite its dominance of employment and training opportunities in the asbestos trade and an increasing industry need for insulation tradesmen, Local 53 intentionally limited membership until by the time this action was instituted union members constituted less than one-fourth of the labor force in the industry. In the two years prior to the commencement of this suit the industry's labor needs had tripled,³ yet in the four years prior to that time, Local 53 admitted but 72 improver members and no new mechanic members.⁴ By the time of this suit, out of the 1,200 man insulation tradesman labor force of those contractors required by contract to recognize Local 53 as the exclusive bargaining agent for such employees, only 282, including 64 improvers, were actually members of Local 53.

In pursuing its exclusionary and nepotistic policies, Local 53 engaged in a pattern and practice of discrimination on the basis of race and national origin both in membership and referrals. It was found to be Local 53's practice to refer white persons of limited experience and white journeymen of other trade unions as mechanic asbestos workers. It was also found to be its practice to refuse to consider negroes or Mexican-Americans for membership and to refuse to refer negroes for employment or to accept negroes for referral for employment. This policy and various acts of discrimination, both prior to and after the effective date of the Civil Rights Act of 1964,⁵ were admitted at trial and on this appeal.⁶

On February 25, 1966, March 9, 1966, and April 9, 1966, Paul M. Vogler, Jr., Juan Galaviz and Casimere Joseph, III, respectively filed complaints with the Equal Employment Opportunity Commission alleging that they had been denied membership in and referral for work by Local 53 in violation of Title VII of the Civil Rights Act of 1964. On November 19, 1966, the EEOC found reasonable cause to believe that the violations had occurred but was unable to secure voluntary union compliance with the Act.

On November 25, 1966, Vogler, Galaviz and Joseph instituted this action in the District Court and on the same day filed a motion for a temporary restraining order, entered that day by the court,⁷ and a preliminary injunction. On December 15, 1966, the United States filed a complaint under 42 U.S.C.A. § 2000e — 5(a) and (b) alleging a pattern or practice of discrimination and a motion for a preliminary injunction. The two cases were consolidated, and following an evidentiary hearing the District Court on May 31, 1967, entered an injunction.

The injunction prohibits discrimination in excluding persons from union membership or referring persons for work; prohibits use of members' endorsements, family relationship or elections as criteria for membership; ordered that four individuals be admitted to membership and nine others be referred for work; ordered the development of objective membership criteria and prohibited new members other than the four until developed; and ordered continuation of chronological referrals for work, with alternating white and negro referrals until objective membership criteria are developed.

The union argues that the preliminary injunction has retrospective effect and penalizes the union for pre-Act discriminatory policies in violation of the intent of Congress; that the injunction violates the Act's prohibitions against preferential racial treatment or establishing a quota system to correct racial imbalance; that the injunction is inconsistent with other Congressional labor legislation; and that the order exceeds the District Court's discretion by interfering with the scheme of the Civil Rights Act. The union also argues that despite its emphasis of the importance of this case and the necessity for guidance by this Court,⁸ it should be permitted to withdraw its appeal, or alternatively that the appeal should be dismissed without prejudice, contending that little remains to be done and that future action could better be sought in the District Court by motion.

We agree with none of the union's contentions.

Local 53 admits that the evidence warrants "an order prohibiting in forceful terms discrimination on the basis of race in referral for employment and in admission to membership,"⁹ and indeed it does, but the union apparently would limit any relief to a "forceful," but formless, order. If Local 53 wishes to read a forceful prohibition against discrimination, it need look no further than the Civil Rights Act itself.

Section 703(c) and (d) of the Act, 42 U.S.C.A. § 2000e — 2(c) and (d), declares that it is an unlawful employment practice for a labor organization within the purview of the Act to discriminate on the basis of race or national origin in membership, employment referrals or training programs,¹⁰ and section 706(g), 42 U.S.C.A. § 2000e — 5(g), authorizes appropriate judicial relief from unlawful discriminatory practices.¹¹ In formulating relief from such practices the courts are not limited to simply parroting the Act's prohibitions but are permitted, if not required, to "order such affirmative action as may be appropriate."¹²See United States v. Louisiana, E.D.La.1963, 225 F.Supp. 353, 393, aff'd, 1965, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709.¹³ The District Court was invested with a large measure of discretion in modeling its decree to ensure compliance with the Act, Mitchell v. Robert DeMario Jewelry Co., 1965, 361 U.S. 288, 291, 80 S.Ct. 332, 4 L.Ed.2d 323; International Salt Co. v. United States, 1947, 332 U.S. 392, 400-401, 68 S.Ct. 12, 92 L.Ed. 20, and this Court will not interfere with that discretion except for an abuse thereof. United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 185, 65 S.Ct. 254, 89 L.Ed. 160.¹⁴ Where necessary to ensure compliance with the Act, the District Court was fully empowered to eliminate the present effects of past discrimination. United States v. Local 189, United Papermakers & Paperworkers, E.D.La.1968, 282 F.Supp. 39, 45; Quarles v. Philip Morris, Inc., E.D. Va.1968, 279 F.Supp. 505, 516. See also Louisiana v. United States, 1965, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709.

The District Court properly ordered the immediate admission into membership of four individuals, including three negro members of another union, Plasterers Local 93, and a Mexican-American, who had applied for and were refused consideration for membership in Local 53. The union contends that this was error because the three negroes had not applied for membership,¹⁵ and because these individuals were refused membership for reasons other than race or national origin. Because we are bound by the District Court's finding, amply supported by the evidence, that the three negroes had been refused consideration for membership, the union's first attack fails. Rule 52(a), Fed.R.Civ. P. Neither is the second attack of avail to the union, because its exclusionary membership policies were invalid as applied to these individuals. We fully agree with the District Court's finding that the three negroes were refused membership solely because they are negro and that the Mexican-American equally effectively was denied membership because of his national origin. The same reasoning applies to the District Court's order that nine individuals be immediately referred for employment as first...